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Name: People v. Vizcarra
Case #: D065579
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/30/2015

In second appeal following resentencing to correct an unauthorized sentence, appellant was barred from raising claim that an increase in his aggregate prison sentence was illegal because the same claim was rejected in his first appeal. A jury convicted Vizcarra of gang-related crimes and found true a strike prior. Vizcarra was sentenced to an aggregate term of 15 years and appealed. In the respondent’s brief during his first appeal, the People argued that the trial court entered an unauthorized sentence because it did not double the sentence for one of Vizcarra’s convictions under the Three Strikes law and did not impose a mandatory five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)(1)). In his reply brief, Vizcarro argued that People v. Henderson (1963) 60 Cal.3d 482 prohibited his sentence from being increased. The Court of Appeal disagreed, found the sentence was unauthorized, and remanded for resentencing. Vizcarro sought rehearing and review, but both were denied. On remand, the trial court sentenced him to an aggregate term of 22 years. He appealed, again arguing that Henderson prohibited the seven-year increase. Held: Affirmed. The doctrines of collateral estoppel and law of the case bar Vizcarro from relitigating the same Henderson claim that was already raised and rejected during his previous appeal. Application of these doctrines does not lead to an unjust result. Vizcarro had ample opportunity to argue the Henderson issue in his previous appeal and he has not shown any significant change in circumstances. Additionally, the Henderson issue fails on the merits because the trial court’s original sentence was unauthorized and the error could be corrected even though the proper sentence was more severe. (See People v. Serrato (1973) 9 Cal.3d 753, 764.) Finally, the trial court did not abuse its discretion in resentencing Vizcarro on remand.